{"id":4669,"date":"2010-09-16T13:51:46","date_gmt":"2010-09-16T13:51:46","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-09-16T13:51:46","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4669","title":{"rendered":"New law review article: \u201cThe Bilateral Fourth Amendment and the Duties of Law-Abiding Persons\u201d"},"content":{"rendered":"<p><a href=\"http:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=1676204\">The Bilateral Fourth Amendment and the Duties of Law-Abiding Persons<\/a> by L. Rush Atkinson V of N.Y.U. School of Law, forthcoming in the Georgetown Law Journal, on SSRN. The Abstract:<\/p>\n<blockquote><p>The Fourth Amendment protects the innocent only from \u201cunreasonable\u201d searches. In lieu of the limited nature of this constitutional safeguard, law abiders consistently take precautions to avoid government searches. This Article considers why constitutional jurisprudence limits the protection of the innocent to \u201cunreasonable\u201d searches, thereby forcing them to alter their behavior. The most satisfying answer derives from an often overlooked fact: Searches of innocent persons are often \u201cbilateral accidents,\u201d meaning that both the innocent suspect and the police can affect the likelihood of an erroneous search occurring. In bilateral conditions, a reasonableness rule induces both the searcher and searched to take optimal care to avoid mistaken searches, while other rules embodied in constitutional protections \u2014 like that within the Takings Clause \u2014 cannot. <\/p>\n<p>By assigning costs for erroneous-but-reasonable searches to the innocent, the Fourth Amendment functions as an important regulatory device, channeling law abiders away from activity that unintentionally masks others\u2019 criminal enterprises. Thus, the Amendment regulates the very people that it protects from governmental intrusions. This Article refers to this duality as the \u201cbilateral Fourth Amendment,\u201d and argues the Amendment\u2019s incentives for the innocent are best understood as a duty for law-abiding people to act reasonably. <\/p>\n<p>At the same time, identifying the \u201cbilateral\u201d nature of searches should influence the legal rules dictating what evidence police may use as grounds to search a suspect. Because the innocent alter their behavior based on which activities the government deems \u201csuspicious,\u201d rules about cause and suspicion cannot singly turn on evidence\u2019s probative value; they must also account for the socially beneficial activity that is reduced by labeling behavior \u201csuspicious.\u201d <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"<p>b2evALnk.b2WPAutP <a class=\"more-link\" href=\"http:\/\/fourthamendment.com\/?p=4669\">Continue reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-4669","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4669","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4669"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4669\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4669"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4669"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4669"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}